June 2015
EPA and Army Release Final Rule Expanding Scope of Clean
Water Act Jurisdiction
On May 27, 2015, the Environmental Protection Agency and the Department of the Army released a prepublication version of the final rule defining the scope of waters that will be regulated under the federal
Clean Water Act (CWA), also known as the “waters of the U.S.” rule. The rule has implications for any
entity regulated under the CWA, including construction, manufacturing, mining, agricultural, and energy
development. The rule will become effective 60 days after the date it is published in the Federal Register,
which is expected soon.
Publication of the rule is expected to trigger legal challenges by a number of states and industry groups.
In addition, there are several legislative efforts underway to halt the rule’s implementation, but
environmental groups have already committed to spending several million dollars to lobby against these
efforts. It is important that your business review the rule’s provisions and assess how it will impact
existing activities, operations and maintenance and future projects. We provide a general summary below
of the rule’s major provisions.
Summary of the Rule
The rule creates eight categories of regulated waters. The first four categories, (1) traditional navigable
waters (TNW); (2) interstate waters; (3) territorial seas; and (4) impoundments, are jurisdictional by rule.
Two categories, (5) tributaries and (6) adjacent waters are jurisdictional by rule where features meet the
definition. Two categories, (7) enumerated regional features with a significant nexus; and (8) waters in
the 100-year flood plain or within 4,000 feet of a water of the U.S. with a significant nexus, are
jurisdictional where the agencies find, after a case-by-case analysis, they have a significant nexus to
TNW, interstate waters or territorial seas.
Key New Regulatory Terms
The rule creates new regulatory terms and definitions that will be key to determining jurisdiction:
•
A Tributary is newly defined as a water that exhibits a bed, bank and Ordinary High Water Mark
(OHWM) and contributes flow, either directly or through another water, to a TNW, interstate water
or territorial sea;
•
Ditches are now considered jurisdictional where they exhibit tributary characteristics. Certain
ditches are excluded from jurisdiction, e.g. ditches with intermittent or ephemeral flow that do not
relocate or excavate a tributary, or drain wetlands or ditches that contribute flow to a TNW,
interstate water or territorial sea. The burden of proving a ditch is not jurisdictional under one of
these narrow exclusions is on landowners and applicants. A ditch may be both a point source
and a “water of the U.S.,” which could lead to duplicative and possibly inconsistent regulation
under the CWA;
•
Adjacent is defined to include waters that are “neighboring” other waters. Neighboring waters
now include: all waters located within 100 feet of the OHWM of a TNW, interstate water or
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territorial sea; all waters located within the 100-year floodplain and not more than 1,500 feet from
the OHWM of such water; and all waters located within 1,500 feet of the high tide line of such
waters. The new definition captures features such as ponds, lakes, oxbows and features on
industrial sites formerly considered non-jurisdictional. The use of OHWM and 100-year floodplain
as factors creates ambiguity and will make it difficult for landowners and regulators to make
definitive decisions. The adjacency analysis inserts inconsistency and uncertainty into the
process and creates risk for landowners or project proponents who face civil and criminal
penalties under the CWA, should they get it wrong.
•
Waters not within the distance thresholds of the adjacent waters category can be jurisdictional if
they are located within the 100-year floodplain or within 4,000 feet of the OHWM or high tide line
of waters of the US and are found to have a “significant nexus.” Certain listed regional features
(prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools, and Texas
coastal prairie wetlands) can also be jurisdictional if they are found to have a significant nexus.
•
A significant nexus can be found if any one of the following functions exists: sediment trapping;
nutrient recycling; pollutant trapping, transformation, filtering, and transport; retention and
attenuation of flood waters; runoff storage; contribution of flow; export of organic matter; export of
food resources; and provision of life cycle dependent aquatic habitat (such as foraging, feeding,
nesting, breeding, spawning, or use as a nursery area) for species located in a TNW, interstate or
territorial sea.
Features Excluded From Jurisdiction
The rule sets forth several exclusions that include:
• waste treatment systems, including ponds or lagoons designed to meet the requirements of the
CWA;
• prior converted cropland;
• certain ditches that are not tributaries;
• artificial, constructed lakes and ponds created in dry land, such as cooling ponds, settling ponds,
and irrigation ponds;
• artificially irrigated areas that would revert to dry land should watering cease;
• water filled depressions created in dry land incidental to mining or construction activity, including
pits excavated for obtaining fill, sand, or gravel that fill with water;
• erosional features, including gullies, rills, and other ephemeral features that do not exhibit bed,
banks and OHWM;
• groundwater, including groundwater drained through subsurface drainage systems;
• stormwater control, wastewater recycling structures, detention and retention basins built for
wastewater recycling only where built on dry land; and
• water distribution structures built for wastewater recycling.
Most of the exclusions require that the feature was created in or would revert to “dry land.” Again, the
burden will be on the applicant to demonstrate that an exclusion is applicable to features on their land.
The rule establishes that existing approved jurisdictional determinations (JDs) issued under the previous
rule remain valid. However, for the most part, pending and future JDs will be subject to the terms of the
new rule, upon its effective date.
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Our lawyers are available to assist you with understanding how the rule will impact your business.
Contacts
Kristy A. Niehaus Bulleit
[email protected]
Karen C. Bennett
[email protected]
Deidre G. Duncan
[email protected]
Karma B. Brown
[email protected]
Kathy Robb
[email protected]
John Henson
[email protected]
Andrew J. Turner
[email protected]
Kerry L. McGrath
[email protected]
Virginia S. Albrecht
[email protected]
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